11 January 2021

Balwinder Kaur
Supervisor

Re: Oakwood Cottage & Lavender House

Dear Mr. Kaur:

Good day!

Upon my thorough research for the answers to Ms. Kathleen’s legal queries, the
following are the best legal advice that we can give her:

As to the Oak Cottage, we can advise Kathleen that she can continue to
exercise her right to occupy the property. Kathleen cannot be evicted because
of the overriding interest that she has over the property which is binding on
Vikesh.

Although the same was registered solely in Beatrice’s name, a “resulting trust”
was created by virtue of their agreement that Kathleen can live with her in the
Oak Cottage if she pays £50,000 for the purchase price.

Section 28 of the Land Registration Act of 2002 provides that: (1) Except as
provided by sections 29 and 30, the priority of an interest affecting a registered
estate or charge is not affected by a disposition of the estate or charge; (2)It
makes no difference for the purposes of this section whether the interest or
disposition is registered. This means that the priority of an interest affecting a
registered estate or charge is not affected by a disposition (whether or not the
interest or disposition is registered).

As provided further under Schedule 3 of the Land Registration Act of 2002,

“Actual Occupation” is an unregistered interest which override registered
dispositions. In order for “interest of persons in Actual Occupation” to be
considered as an overriding interest, two requisites must be complied, to wit: 1)
the person claiming must have proprietary interest over the property;
and, 2)that he or she must be in actual occupation on the property at the
time of the disposition.

The first requisite above stated is present because Kathleen has proprietary
interest on the Oak Cottage due to the “resulting trust”. Kathleen did not
intend to make her contribution of the purchase price as gift to Beatrice.

As defined in the case of Lau Siew Kim v Yeo Huan Chye Terrence ([2008] 2
SLR(R) 108), the presumed “Resulting trust” is an equitable response to
situations where property is transferred to another in circumstances in which
the provider did not intend to benefit the recipient. It arises whenever the
transferor intention to benefit the transferee is absent or vitiated. Further, A
resulting trust is presumed to exist when a person makes a voluntary payment
to another person or pays (wholly or in part) for the purchase of property which
is vested either in the name of one person alone or in their joint names, there is
a presumption that the one of them did not intend to make a gift to the other.

As to the second requirement above-stated, Kathleen is considered to be in

actual occupation of the property. As laid down in the case of Thompson v
Foy, the words “actual occupation” are ordinary words of plain English and
should be interpreted as such. In the case of Williams & Glyn’s Bank v Boland,
the word “actual” emphasizes that physical presence is required. As declared in
Abbey Nationals BS v. Cann, it does not necessarily involve the personal
presence of the person claiming to occupy. It was said that a representative can
occupy on behalf of his employer. Also, in Hoggett v. Hogget, it was ruled that
manifestation of continuing intention to occupy is necessary whenever the
person said to be in actual occupation is not physically present on the land at
a certain time. In Chhokar vs Chhokar, it was further ruled that a temporary
absence does not prevent a claim for actual occupation.

Applying these pronouncements laid down by the House of Lords, Kathleen is

in actual possession of the property despite the fact that she was temporary
absent during the time the property was conveyed to Vikesh. It is a settled rule
that temporary absence does not defeat a claim for actual occupation.

Notwithstanding the conveyance of the property to Vikesh by virtue of a Sale,

the overriding interest of Kathleen was not overreached. The concept of
“Overreaching” was provided in the Law of Property Act of 1925 wherein it
refers to a situation where a person’s equitable property right is dissolved,
detached from a piece of property and reattached to the money that is given by
a third party for the property. However, in order for overreaching to operate, it
is required that the purchaser must pay any capital moneys arising under the
conveyance to at least two trustees or a trust corporation. Since, Beatrice
was the sole trustee, overreaching did not operate.

With regard to the Lavander House, it is regretful to inform Kathleen that she
cannot evict Aasif during the effectivity of the lease. However, being the new
landlord, she can receive the rents as compensation. The lease is nearly to
expire considering that it will end 4 years from the date of commencement. We
can advise her not to renew the lease and take actual possession of the
property after the expiration of the lease.
Although the lease was not registered as notice in the title, such agreement still
binds Kathleen. Aasif has interest over the purchased Lavender House by
virtue of the lease agreement between him and the previous owner Daniel.

As defined by the House of Lords in the case of Street v Mountford, a lease is

the grant of right to exclusive possession of land for a determinate term less
that that which the grantor himself has in the land.
Under the LPA 1925, it is required that a fixed term lease for 3 years or longer
must be made by a Deed. A lease created by a Deed is considered as Legal
Lease. Under the Schedule 3, of the LRA 2002, a legal lease with a fixed term of
3 to 7 years is protected as an overriding interest whether a notice has been
registered or not on the title.
From the foregoing, the lease was for a fixed term of 4 years form January 31,
2017. Such lease is more than 3 but less than 7 years. It is protected as an
overriding interest even such was not registered as a notice.

Thank you!

Sincerely,
Trainee Solicitor